9.  The applicant was imprisoned in Northern Ireland in 1975 for his involvement in a bombing for which the Irish Republican Army (“IRA”) was held responsible. On 25 September 1983 he escaped from prison.
10.  In December 1983 a high profile kidnapping in Ireland ended in a gunfight with the security forces. The kidnapped man was released but a soldier and policeman were killed. A forensic report identified fingerprints found on items at the crime scene as those of the applicant. On 7 January 1984 an internal police circular was issued stating that the applicant was wanted on serious charges connected to the kidnapping.
11.  In January 1986 the applicant was arrested in the Netherlands. In December 1986 he was extradited to Northern Ireland where he resumed serving his sentence. The Irish police did not interview the applicant about the kidnapping while in prison in Northern Ireland for the reasons later outlined by the Supreme Court (see paragraph 30 below).
12.  From 1993 the applicant was granted periods of temporary release during which he visited Ireland. In January 1998 he was released on parole from prison in Northern Ireland.
13.  On 5 January 1998 the applicant was arrested in Ireland by the Irish police under section 30 of the Offences Against the State Act 1939, as amended (“OASA”). He was questioned and charged before the Special Criminal Court (“SCC”) with offences relating to the kidnapping: false imprisonment, unlawful possession of firearms and kidnapping (a life sentence was the maximum prison term for the first and third charge). The SCC later noted (prior to dismissing the charges in 2008) that the evidence against the applicant was an admission he had made during his police interviews that he had been at the kidnap location (which admission he had denied in evidence before the SCC) as well as the fingerprint evidence.
14.  On 5 January 1998 an official of the Department of Justice, Equality and Law Reform received a printed notice of the report of the applicant's arrest and he made handwritten notes thereon (“memorandum of 5January 1998”). The applicant submitted that those notes proved that the Irish police had been aware of his presence in Ireland prior to his arrest.
15.  He applied for bail and on 13 January 1998 he was released on bail, subject to certain reporting conditions. The Supreme Court later noted that he had to sign on once a month at a police station in Ireland (a 160 km round trip from his home in Belfast) and that he had also to attend on approximately 40 occasions since 1998 at the SCC in Dublin (a round trip of 320 km) during the criminal proceedings against him.
16.  On 14 July 1998 the Book of Evidence (statement of the evidence on which the prosecution proposed to rely) was served on the applicant. The Government maintained that the applicant informed the SCC on that date that he might bring judicial review proceedings to prohibit his trial on grounds of delay prior to his arrest.
17.  Correspondence took place between the prosecution and the applicant from July 1998 to March 1999 on disclosure by the prosecution of any other relevant evidence not in the Book of Evidence: it concerned correspondence between the Irish and other authorities as regards his whereabouts prior to his arrest in 1998 and matters relating to the fingerprint issue. The case was put in for mention on the SCC list four times between October 1998 and 18 March 1999. On the latter date the disclosure issues were resolved with further disclosure by the prosecution.
18.  It was through this disclosure process that the applicant was made aware of the loss (on a date between 1993 and 1998) of the items on which the original fingerprints had allegedly been found (“the original fingerprint evidence”). The forensic report (including photographs of the original fingerprints) was retained and available. The Government submitted that the applicant was informed of this loss on 15 January 1999.
19.  A trial date was fixed for 23 November 1999.
20.  The applicant then took expert advice as to the implications for his trial of the loss of the original fingerprint evidence. In October 1999 the expert advised that the fingerprint evidence could not be comprehensively evaluated from the forensic report retained.
21.  On 1 November 1999 the applicant was granted leave to apply for judicial review and, further, a stay on the criminal proceedings against him pending the outcome of the judicial review proceedings. The relief sought by the applicant included a declaration that the delay until 1 November 1999 (mainly concerning the pre-arrest delay) was irreparably prejudicial to a fair trial, a declaration that the loss of the original fingerprint evidence limited his ability to contest the evidence against him as well as an order prohibiting his further prosecution on these bases. The return date for this application was 29 November 1999 and the trial date was vacated. The application was re-listed once a month (from December 1999 to March 2000) and on 5 April 2000 the prosecution filed its Statement of Opposition.
22.  On 15 May 2000 the applicant requested voluntary discovery from the prosecution. No substantive response having been received, on 18 July 2000 he filed a notice of motion for such discovery. While the return date for the motion was in October 2000, the parties agreed to adjourn it to the first hearing date (12 January 2001). Neither party attended on that date, due to a misunderstanding, and the motion was struck out. The applicant submitted that he then sent several letters to the prosecution to obtain its consent to re-enter the motion: the Government accepted that one such letter from the applicant (of 29 May 2001) was on the file.
23.  The applicant filed a fresh motion for discovery on 2 October 2001 and a return date was accorded (16 November 2001). On the latter date the prosecution agreed to make voluntary discovery and, on 8 February 2002, the prosecution filed an affidavit of discovery listing 93 documents in its schedule. This list included the memorandum of 5 January 1998 but the applicant did not request sight of that document at that point. On 1 March 2002 the applicant's motion for discovery was therefore struck out on a consent basis.
24.  On 11 March 2002 the prosecution applied to re-enter the applicant's judicial review action and a hearing date was set for 14 March 2003.
25.  The applicant then filed a motion for further and better discovery returnable before the Master of the High Court on 14 May 2002. The Master refused the order sought (11 June 2002) as did the High Court on appeal (on 22 July 2002).
26.  When the prohibition action came on for hearing on 14 March 2003, a judge was not available to hear the case. It was adjourned to 11 July 2003, when it was heard.
27.  On 18 July 2003 the High Court delivered an ex tempore judgment. The High Court made an order prohibiting the trial of the applicant on the basis that the loss of the original fingerprint evidence meant that there was a real or serious risk of an unfair trial. The High Court rejected the applicant's claim based on the delay: the decision to prosecute was a decision of the prosecuting authorities and depended on the sufficiency of evidence; there were no grounds to suggest that any delay was deliberate; and the decision to prosecute was prompted by new evidence (the applicant's alleged admission during questioning following his arrest in 1998).
(b) Supreme Court ([2006] IESC 11)
28.  On 19 August 2003 the prosecution appealed and the applicant lodged a cross-appeal. On 15 November 2004 the prosecution lodged the Books of Appeal. Since the High Court judge did not formally approve his judgment until 17 January 2005, the prosecution could not file a Certificate of Readiness (that the appeal was ready to be heard) until 27 January 2005.
29.  On 2 February 2006 the applicant was granted leave to have his cross‑appeal heard with the prosecution's appeal. On 16 February 2006 the appeal hearing took place before the Supreme Court.
30.  On 7 March 2006 the Supreme Court delivered its judgment allowing the prosecution's appeal and refusing the applicant's cross-appeal. As to the lost original fingerprint evidence, there had been a forensic examination of the fingerprints before they were lost and the results of that examination were preserved so that the applicant had not been deprived of the reasonable possibility of rebutting the evidence proffered against him and he had therefore not demonstrated that there was a real risk of an unfair trial. As to the impugned pre-arrest delay, all five judges of the Supreme Court considered that that lapse of time was not such as should give rise to a prohibition order. The court considered it legitimate for the Irish police to have waited for his release from prison to arrest him under section 30 of the OASA. There was insufficient evidence to initiate a prosecution prior to his being questioned. The parameters of any questioning while he was in prison in Northern Ireland would have been entirely different from those applicable to a person arrested under section 30 of the OASA. In this latter respect, he was obliged to at least listen to the questions; the structure and duration of the questioning (subject to the proper treatment of persons in custody) would have been under their control and not under that of other (Northern Irish) authorities or that of the applicant himself; and, in the end, he made some statements during questioning which provided additional evidence and, consequently, a basis to initiate a prosecution. Kearns J partly dissented as regards the loss of the original fingerprint evidence only: in doing so he referred to the advice on the issue of the applicant's expert.
31. Following this judgment, the stay on the criminal proceedings pending the first prohibition action was lifted. On 4 April 2006 the SCC fixed the applicant's trial for 3 October 2006.
32.  On 15 May 2006 the applicant was granted leave by the High Court to seek judicial review and, further, a stay on the criminal proceedings against him pending the outcome of the judicial review proceedings. He sought a declaration and a prohibition order on the basis that the delay since 1 November 1999 (namely, during his first prohibition action) had delayed the criminal proceedings which had, inter alia, violated his constitutional right to a trial with reasonable expedition and exposed him to a real and serious risk of an unfair trial.
33.  On 8 November 2006 the High Court refused the prohibition application. It considered that, at best, the evidence demonstrated at most three periods of unnecessary delay by the prosecution during the first judicial review action. However, any increased stress or culpable delay and impact on his right to an expeditious trial did not outweigh the community's considerable interest in having offences of such gravity prosecuted.
(b)Supreme Court ([2008] IESC 7)
34.  The applicant appealed by notice dated 22 February 2007. The Supreme Court heard the appeal on 24 January 2008. On 5 March 2008 judgment was delivered dismissing the appeal unanimously. Fennelly J., Kearns J. and Geoghegan J. delivered separate judgments, with Hardiman J. and Macken J. concurring.
35.  Fennelly J. noted that, while the applicant had included in his motion a request for “any further and/or other relief as this Honourable Court deems meet and just”, the only substantive relief specifically and explicitly sought by him was the prohibition of his trial on grounds of delay. Such a prohibition could only be granted if there were a real risk that his trial would be unfair, and this had been rejected in the first judicial review proceedings as regards the delay prior to the preferment of charges and was undemonstrated as regards the length of the first judicial review proceedings.
36.  However, Fennelly J. noted that the courts had also recognised the possibility of making a prohibition order for the quite distinct reason that there had been a breach of an accused's right to trial with “reasonable expedition”. Noting that the judgment of Powell J. in Barker v. Wingo ((1972) 407 U.S. 514) of the Supreme Court of the United States had been influential in the development of the case-law of the Irish courts on the right to reasonable expedition and the consequences of its breach, Fennelly J. stated that “we have now established a consistent approach, particularly in some recent cases”.
37.  Referring to the approach of Keane CJ in P.M. v Malone ([2002] 2 I.R. 560) and to the reiteration of that approach by Kearns J. in P.M. v DPP ([2006] 3 I.R. 172), Fennelly J. considered that it was necessary to consider, firstly, whether the period that it took to dispose of the first judicial review proceedings constituted a violation of the applicant's right to a trial with due expedition and, secondly, assuming an affirmative answer to that question, whether, having regard to all the circumstances, the Court should make an order prohibiting the Director of Public Prosecutions (“DPP”) from continuing with his prosecution.
As to the first question, Fennelly J. considered that the applicant might have had a legitimate complaint in respect of the delay in approving the High Court judgment (July 2003-January 2005). However, the applicant had taken no steps to expedite the appeal, probably because of the High Court prohibition order. While this delay was significant, in the entire context of the case it did not amount to a breach of his constitutional right to an expeditious hearing of the criminal charges against him.
As to the second question, and even assuming there had been a breach of his constitutional right to an expeditious hearing, the circumstances did not warrant a prohibition order: any delay of 1-2 years was not significant in the trial for offences alleged to have been committed in 1983. As to his anxiety caused by delay, he was, during that period of delay, the holder of an order of the High Court prohibiting his trial and he had carriage of those judicial review proceedings and could have taken steps to accelerate them. In addition, the public interest in pursuing serious crime was crucial and the seriousness of the relevant charges outweighed the added anxiety and length of bail conditions caused by unnecessary delay on judicial review.
38.  Finally, Fennelly J. noted that the right to a trial within “a reasonable time” and to a trial “with reasonable expedition” were “indistinguishable”. However, he differentiated between this Court's finding of unreasonable delay under Article 6 (with an award of just satisfaction), on the one hand, and the balancing exercise a domestic court had to carry out between delay and the public interest in pursuing crime in a prohibition action on grounds of delay (the domestic proceedings), on the other. This Court's role (and therefore the criteria used by it) was more analogous to the decision as to whether delay violated the constitutional right to expeditious proceedings. He noted the Government's submission to this Court in Barry v. Ireland (no. 18273/04, § 35, 15 December 2005) to the effect that judicial review was an effective domestic remedy and that “damages might have been available” on judicial review. Having noted this Court's response to that argument (paragraph 53 of the Barry judgment), he continued:
“74. I made a similar observation in my own judgment in [T.H. v DPP].
These observations are relevant to the interpretation of the judgments of the Court of Human Rights. That court does not engage in the balancing exercise described in the Opinion of Powell J in Barker v Wingo and in the decisions of this Court (such as P.M. v Malone and [P.M. v DPP]. That exercise is neither necessary nor relevant to the decision as to whether to award just satisfaction. Consequently, the decisions of the Court of Human Rights provide useful guidance on the question of whether there has been a breach of the right of an accused person to a trial within a reasonable time or with reasonable expedition. For example, in its judgment in the case of Barry v Ireland ..., the Court restated its consistent approach to the assessment of a reasonable time as follows (paragraph 36 of the judgment; citations omitted):
'The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities....... On the latter point, what is at stake for the applicant in the litigation has to be taken into account.' 75. A further passage from the judgment of the Court also calls for observation. It appears that the representatives of Ireland had submitted to the Court that judicial review, which was available to the applicant in that case, provided an effective remedy in domestic law and that “damages might have been available as a remedy in the judicial review proceedings, if the applicant had sought them.” The Court's response to that argument (at paragraph [53]) was:
'There is no evidence that such proceedings would have been capable of providing damages and the Government accepted that there was no domestic legal provision for an award of damages in following proceedings. Although the Government argued that the common law might be flexible enough to provide such a remedy, they did not refer to one precedent even tending to support this argument. Moreover, the judgment of the Supreme Court made it clear that Convention case-law would not cause the domestic courts to fashion any remedies that would not otherwise have been available ... .' 76. ... in [the Barry] case, as in the present case, no claim for damages had been made. Nor, so far as I am aware, has any such claim ever been made in such a case. In every such case, the accused person, in practice, seeks the remedy of prohibition of his trial. It is clearly not possible for this Court, having an appellate function only, to pronounce in the abstract on whether damages would be available as a remedy, [if they were claimed]. Any such claim would have to be made in the High Court in the first instance. The [European Convention of Human Rights Act 2003] might be relevant. 77. I would also add that the Court may have somewhat misapprehended the remarks of Keane C.J. in the passage of his judgment in [Barry v DPP], which ... [the Court] also quoted. Keane C.J. was merely saying that a particular judgment of the Court of Human Rights did not have effect in domestic law. Whether these courts would “fashion remedies” in the light of the case-law of that Court is a quite different matter and would have to await an appropriate case. Again the [European Convention of Human Rights Act 2003] may or may not be relevant.”
39.  Kearns J. agreed in the main with Fennelly J.'s judgment. He explained, in addition, the various forms of delay in criminal proceedings:
“This appeal raises serious issues about the effects of delay on the entitlement of the State to prosecute criminal offences. It is an issue which has given rise to much anxious consideration by this Court in recent years, particularly in the context of offences relating to the sexual abuse of children. Evaluating reasons for delay and attributing blame for delay in reporting abuse (complainant delay or pre-charge delay) came to be seen as a far from simple exercise in those cases. ...
That was one form of delay. Delay can also arise from the tardiness of the police, either in investigating an alleged crime after it has been reported, or on the part of the prosecuting authorities in bringing an alleged perpetrator before the courts and in taking the necessary steps to prepare a case for trial. The jurisprudence makes clear that this form of delay, called 'prosecutorial delay', may also entitle an applicant to relief in the form of prohibition in certain circumstances. This will arise because an applicant is also entitled to a trial with reasonable expedition as part of his constitutional rights under Article 38.1.
Delay may also arise when the State, by its failure to provide adequate resources or facilities for the disposal of litigation, has itself contributed to delay. 'Systemic delay' of this nature may overlap to some degree with prosecutorial delay and run hand in hand with it. There may be prosecutorial delay within systemic delay. Equally there may be no blameworthy delay by the prosecution but there may yet be delays within the system to which an applicant has in no way contributed. There may also be judicial delay where the court fails to deliver its judgment or decision within an appropriate time frame. Where systemic delay is established it may amount to an infringement of a citizen's constitutional right to a trial with reasonable expedition. Such forms of delay may also amount to an omission or failure on the part of the State to comply with its obligations under the European Convention on Human Rights, in particular Article 6 thereof ...
In the present case it is claimed that there was both prosecutorial delay and delays within the system which prevented an earlier set of judicial review proceedings being disposed of within a reasonable time. There is no suggestion that there was any form of judicial delay contributing to that alleged delay.....”
40.  Kearns J. assessed the criteria by which prosecutorial delay would be measured (a test which he considered reflected that of this Court) and found those principles equally applicable to systemic delay (described as “failures of the criminal justice system”). Prior to applying the test, he made a number of preliminary comments, notably to the effect that degrees of dilatoriness which may have been acceptable in the past could no longer be tolerated since the European Convention of Human Rights Act 2003 (“the 2003 Act”) gave effect in Ireland to the provisions of the Convention: both the constitutional and Convention rights to trial with reasonable expedition had to be “vindicated by being given real effect”.
41.  However, that did not mean that the prohibition of a criminal trial had to be resorted to more readily and Kearns J. pointed to the difference between the role of this Court under the reasonable time requirement of Article 6 § 1 and its award of just satisfaction and that of the domestic courts in prohibition proceedings where unreasonable expedition had to be balanced against the public interest in continuing with a prosecution. Given this added element in the domestic prohibition proceedings, prohibition should only be granted exceptionally and where there was an assessed serious breach of the rights under Article 38(1) of the Constitution and of Article 6 § 1 of the Convention. In so noting, Kearns J. referred to other domestic remedies as follows:
“I would accept that a distinction may require to be drawn between breaches of the right which give rise to an entitlement to obtain prohibition and lesser transgressions which may conceivably give rise to some other remedy, such as one in damages. However, any entitlement to a remedy in damages for breach of a constitutional right to an expeditious trial is a matter that will require very full and careful consideration in an appropriate case.”
42.  As to whether there was blameworthy delay, Kearns J. hesitated on the same period of delay (noted by Fennelly J.) in approving the High Court judgment but he did not consider that “blameworthy” given the absence of evidence that it deviated from the norm. Accordingly, even given the passage of time since the original alleged offence and a consequent “heightened degree of urgency in advancing this prosecution”, it was not considered that the applicant had established blameworthy prosecutorial or systemic delay. Even assuming he had, Kearns J. was satisfied that there was no demonstrated prejudice to the applicant or impairment of his other rights including the constitutional right to a trial in due course of law. As regards the motion struck out on 12 January 2001, Kearns J noted that the applicant had not done anything about re-entering it for four months and that it had taken eight months to re-enter the motion. As regards discovery by the prosecution in February 2002, Kearns J noted that this affidavit listed 93 documents and was clearly the result of “considerable effort”.
43.  Geoghegan J. broadly agreed with those judgments. He considered that no important issue of “systemic delay” arose in the present case and he reserved his view on its nature and relevance for a future case, though noting that the rather new concept of systemic delay was not the same thing as prosecutorial delay. He suggested that an inadequate number of judges would, if anything, be a reason to assess a longer delay as reasonable in the circumstances, although he acknowledged that that view might not accord with the Convention. The Convention's jurisprudence in Irish cases was not sufficiently clear as to the correct approach to systemic delay and, notably, as to the blameworthiness of a State for systemic delay: could, for example, a State be blamed for diverting limited economic resources to a hospital as opposed to judicial institutions? In any event, the present case was not the appropriate one to examine systemic delay as none of the impugned periods of delay warranted a prohibition order. As to the lapse of time in approving the High Court judgment, he found it unnecessary to consider whether this delay should be taken into account in considering whether a trial should be prohibited because he was “quite satisfied that prohibition would not be appropriate in this case at any rate”.
44.  Following this judgment, the stay on the criminal proceedings pending the second prohibition action was lifted. On 14 March 2008 the criminal proceedings were reinstated before the SCC when the trial date was fixed for 11 June 2008. The memorandum of 5 January 1998 (paragraph 14 above) was again disclosed as additional evidence on 16 June 2008.
45.  On 26 June 2008, and following a ruling by the SCC that the principal evidence in the case (the alleged admission of the applicant during police questioning) was inadmissible, the prosecution indicated that they did not propose to adduce further evidence and the charges were dismissed.
46.  The applicant introduced a second application to this Court in April 2008 in which he complained under, inter alia, Articles 6 and 13 about the length of the criminal proceedings against him and about the lack of an effective domestic remedy in this regard. Referring to the general time-line of events since 1983, he mainly complained about delay during the first prohibition action. That application has not been joined to the present one.